Denis v. Attorney Gen. of The United States

• Decision Date: 26 January 2011
• Docket Number: 10–1391.,10–1390,09–3520,Nos. 09–2113,s. 09–2113
• Citation: 633 F.3d 201
• Parties: Jean Antoine DENIS, Petitionerv.ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

633 F.3d 201

Jean Antoine DENIS, Petitioner
v.
ATTORNEY GENERAL OF the UNITED STATES, Respondent.

Nos. 09–2113

09–3520

10–1390

10–1391.

United States Court of Appeals, Third Circuit.

Argued Oct. 26, 2010.Filed: Jan. 26, 2011.

[633 F.3d 203]

Jonathan J. Li, Esq., Joseph R. Wallin, Esq., [Argued], Gibson, Dunn & Crutcher, New York, NY, Counsel for PetitionerEric H. Holder, Jr., Esq., Thomas W. Hussey, Esq., Ann C. Varnon, Esq., Kelly J. Walls, Esq., [Argued], United States Department of Justice, Office of Immigration Litigation, Civil Division, Washington, DC, Counsel for Respondent.Before: McKEE, Chief Judge, SLOVITER and RENDELL, Circuit Judges.

OPINION OF THE COURT RENDELL, Circuit Judge.

Jean Antoine Denis petitions for review of the determination of the Board of Immigration Appeals (“BIA”) that his conviction for tampering with physical evidence under New York law constituted an aggravated felony and a particularly serious crime, subjecting him to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii), and rendering him ineligible for withholding of removal under 8 U.S.C. § 1231(b)(3). Denis also contends that he received ineffective assistance of counsel and should have been found eligible for deferral of removal pursuant to the Convention Against Torture (“CAT”), 8 C.F.R. § 208.17.¹

We conclude that the BIA correctly determined that Denis's conviction constituted an aggravated felony and a particularly serious crime, and that Denis is ineligible for deferral of removal.

Background & Procedural History

Denis, a native and citizen of Haiti, entered the United States unlawfully in 1985, and adjusted his status to lawful permanent resident in 1992. Prior to emigrating from Haiti, Denis was a police officer under Francois Duvalier's regime, and served on the security detail for Duvalier's motorcades, which were widely televised and photographed in Haiti. Denis asserts that after he objected to the human rights abuses perpetrated by others in Duvalier's police force, he was forced to flee Haiti due to concerns for his safety. After arriving in the United States, Denis continued to

[633 F.3d 204]

support the democratic movement in Haiti associated with Jean–Bertrand Aristide.

In the United States, Denis eventually started and owned a business that provided a variety of services, including selling insurance, notarizing documents, and preparing income tax returns. On November 9, 1998, Denis had an altercation with a female client regarding an allegedly outstanding debt of $300 owed by Denis to the client. The client visited Denis at his office, bit him and placed him in a chokehold; when Denis resisted, the client slipped, landed on her head, and died instantly. Denis panicked and hid the body with the assistance of an associate.

Because the victim's body was stiff and her legs did not fit in the bag Denis intended to use to carry the victim to his car, Denis dismembered her legs and one of her arms with a machete from his office. After transporting the body in the trunk of his car to his house, Denis took the body to the basement and left the victim there for approximately two days. He then returned to his office and cleaned up the victim's blood. Subsequently, Denis and his associate dug through the cement floor of Denis's garage, placed the body in a suitcase in the hole, covered the suitcase with dirt, and poured cement over the buried corpse.

Denis's associate eventually revealed the occurrence of the crime, and the police arrested Denis on December 15, 1998, charging him with second degree murder and tampering with physical evidence. On June 29, 1999, a jury found Denis guilty of second degree manslaughter, in violation of New York Penal Law (“NYPL”) § 125.15(1),² and of tampering with physical evidence, in violation of NYPL § 215.40(2).³ Due to the significant aggravating facts associated with the aftermath of the fatal attack, the judge sentenced Denis to the “absolute maximum sentence for his conduct.” (Administrative Record (“A.R.”) at 1170.) Denis received an indeterminate sentence of two-and-two-thirds years to eight years for manslaughter, and an indeterminate sentence of one-and-one-third years to four years for the tampering with physical evidence conviction. Denis served a total of seven years in prison and was released in December 2006. He was then placed in federal immigration detention and placed on supervised released in April 2010.

In June 2004, while Denis was incarcerated for the state convictions, the Bureau of Immigration and Customs Enforcement (“ICE”) issued a Notice to Appear to Denis, charging him with removability pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) based on his conviction for an aggravated felony,⁴ as defined in 8 U.S.C. § 1101(a)(43)(S), namely, an offense relating to obstruction of justice for which the term of imprisonment is at least one year. ⁵ Denis appeared

[633 F.3d 205]

with his accredited representative before the immigration judge (“IJ”) on November 30, 2004, admitted the truth of the factual allegations, but denied removability. He offered testimony as to the circumstances of the crime, explaining that he could not “just throw [the victim's] body in the water or somewhere” because his fingerprints were on the body. (A.R. at 782–84.) Specifically, Denis worried that he “might have a problem with the police if they found [the body],” and decided to transport it from his office in Brooklyn, New York to his house in Queens, New York. At a continued hearing on February 23, 2005, Denis moved for withholding of removal and CAT protection, arguing that he would face persecution if he returned to Haiti due to his previous role as a bodyguard to the Duvalier regime. The IJ sustained the aggravated felony ground of removability and denied Denis's request for CAT withholding of removal on April 26, 2005. After a timely appeal, the BIA affirmed without opinion the IJ's decision on August 8, 2005. Denis timely petitioned for review before the United States Court of Appeals for the Second Circuit on October 17, 2007, which petition was transferred to this Court on February 18, 2010.⁶

In extensive subsequent proceedings, Denis challenged the IJ's and BIA's rulings holding that Denis's crime of conviction constituted an aggravated felony and a particularly serious crime; he further disputed the decision as to his ineligibility for CAT relief. The BIA affirmed the IJ's decision that Denis committed an aggravated felony and the IJ's subsequent decision finding that Denis's felony constituted a particularly serious crime. The BIA also affirmed the IJ's determination that in spite of receiving ineffective assistance of counsel, the deficiency did not prejudice Denis as he failed to demonstrate eligibility for CAT relief.⁷ Denis petitioned this Court for review of both of the BIA's latter decisions, and the Court consolidated the petitions for review.

In this petition for review, Denis contends that his crime of conviction is not an aggravated felony and should not constitute a particularly serious crime; he further alleges that based on his counsel's ineffective assistance, he was found ineligible for CAT relief without due process. Each assertion implicates “constitutional claims or questions of law,” 8 U.S.C. § 1252(a)(2)(D), and we review the BIA's legal determinations de novo, subject to

[633 F.3d 206]

Chevron principles of deference. Pierre v. Att'y Gen., 528 F.3d 180, 184 (3d Cir.2008) (citing Chevron, 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984)); Kang v. Att'y Gen., 611 F.3d 157, 163 (3d Cir.2010). We will address each argument in turn.⁸

DiscussionI. “Aggravated Felony” Determination Pursuant to 8 U.S.C. § 1101(a)(43)(S)

Denis contends that his conviction for tampering with physical evidence under NYPL § 215.40(2) does not constitute an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43)(S). The Attorney General counters that Denis's state conviction qualifies as an aggravated felony because it was an offense relating to obstruction of justice, warranting his removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Under the Immigration and Nationality Act (“INA”), an aggravated felony is defined to include “an offense relating to obstruction of justice ... for which the term of imprisonment is at least one year.” § 1101(a)(43)(S). Because Denis's minimum term of imprisonment exceeded one year, his violation of NYPL § 215.40(2) qualifies as an aggravated felony and renders him removable if his crime of conviction “relat [es] to obstruction of justice.”

Our analysis as to whether a particular state conviction constitutes an aggravated felony under the INA usually follows the “formal categorical approach” set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); that is, we “look to the elements of the statutory state offense, not to the specific facts, reading the applicable statute to ascertain the least culpable conduct necessary to sustain conviction under the statute.” Jean–Louis v. Att'y Gen., 582 F.3d 462, 466 (3d Cir.2009) (citing Knapik v. Ashcroft, 384 F.3d 84, 89 (3d Cir.2004)) (internal quotations omitted); see also Restrepo v. Att'y Gen., 617 F.3d 787, 791 (3d Cir.2010) (“[T]he categorical approach prohibits consideration of evidence other than the statutory definition of the offense, thus precluding review of the particular facts underlying a conviction.”). If the elements of the aggravated felony generic crimes enumerated in the federal statute are the same as or broader than the elements of the specific criminal statute of conviction, then the specific crime of conviction categorically qualifies as an aggravated felony. See, e.g., Garcia v. Att'y Gen., 462 F.3d 287, 291 (3d Cir.2006).

Where, however, “ ‘a statute criminalizes different kinds of conduct, some of which would constitute [aggravated felonies] while others would not, the court must apply a modified categorical approach by which a court may look beyond the...